Tuesday, February 25, 2014

How not to protect confidential information: throw your client files in boxes where anyone can find them and read them

The Legal Profession blog is reporting that the Indiana Supreme Court has imposed a suspension of not less than two years without automatic reinstatement on an attorney for, among other things, discarding client files without protecting the confidential information in them.  According to the story:     "When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records."

The court found the conduct violated the duty of confidentiality because he attorney revealed confidential information in violation of rule 1.6(a).  However, it does not sound like the attorney intended to reveal the information.  He was just careless about it.  Applying 1.6(a) under the circumstances means that the attorney's negligent handling of the files is enough to support a finding of a violation of the duty.  Or, in other words, that an accidental disclosure is, by itself, evidence of a violation of the duty.

This would not necessarily be the case under the most recent version of Model Rule 1.6.  This version recognizes two different duties:  under 1.6(a) attorneys have a duty not to purposely disclose confidential information, while under 1.6(c) attorneys have a duty to take reasonable measures to prevent inadvertent or unauthorized disclosures.  This means that an accidental disclosure, by itself, does not mean the attorney violated the duty of confidentiality.  

Applied to the facts of the Indiana case, however, I think the result would be the same because the attorney could not even argue he meets the lower standard.  Clearly, he did not take reasonable measures to protect the confidential information in the files.

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